C2003/1627, Transcript of Proceedings [2003] AIRCTrans 1357 (15 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2003/1627

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

HANSEN YUNCKEN (SA) PTY LIMITED
AND OTHERS

Notification pursuant to section 99 of the Act
of an industrial dispute re Annual Leave over
Easter Period

ADELAIDE

12.42 PM, THURSDAY, 27 MARCH 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon, can I have some appearances please?

PN2

MR M. HARRISON: May it please the Commission, I apologise for my late appearance, the vicinity is bereft of parking space. If it please the Commission I appear with MR J. FEEHNAN for the notifying CFMEU.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harrison.

PN4

MR M. HOWARD: If it please the Commission, I appear for Hansen Yuncken Proprietary Limited, Ballestrin Concrete Construction Proprietary Limited, King Formwork Proprietary Limited, McMahon Services Proprietary Limited and Universal Scaffolding Proprietary Limited. Appearing with me is Mr P. SALVERSON, from Hansen Yuncken Proprietary Limited, MR D. CONNORS, from Ballestrin Concrete Constructions Proprietary Limited, MR J. COX, from King Formwork Proprietary Limited, MR P. BUBNER from McMahon Services Proprietary Limited and MR R. HALL from Universal Scaffolding Proprietary Limited. If the Commission pleases.

PN5

MR HARRISON: And I take it - - -

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. I take it that all of those employers believe that they are in dispute with the CFMEU?

PN7

MR HOWARD: That - the notification, your Honour, was citing Hansen Yuncken, Ballestrin, King and Universal Scaffolding. It was brought to light that McMahon Services were also involved with work on that particular site.

PN8

THE SENIOR DEPUTY PRESIDENT: I see, thank you, and don't charge all your members the full account given the number that you are representing today, will you?

PN9

MR HARRISON: I take it there is no appearance for the MBA?

PN10

THE SENIOR DEPUTY PRESIDENT: Mr Howard, are you also appearing for the MBA?

PN11

MR HOWARD: Well, the dispute is not technically with the MBA, but if the Commission pleases, I will make a further appearance and appear on behalf of the Master Builders Association of South Australia Incorporated. If the Commission pleases.

PN12

THE SENIOR DEPUTY PRESIDENT: You have your answer there, Mr Harrison.

PN13

MR HARRISON: Yes, and if it please the Commission, there was an apparent conflict of interest in this matter between the head contractor Hansen Yuncken on the one hand and the subcontractors who are behoven to it either by contract or by other means and are subject to its direction on these issues and it is our submission that they ought to be represented separately.

PN14

THE SENIOR DEPUTY PRESIDENT: But Mr Harrison, if those employers whether they be principle contractors, head contractors, or subcontractors, have authorised Mr Howard to appear on their behalf, then by what mechanism do you suggest that I ought not accept Mr Howard's appearance?

PN15

MR HARRISON: Well, simply that it is clear on the - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Nothing is clear to me at this stage, Mr Harrison.

PN17

MR HARRISON: Well, I would seek to tender the notification.

PN18

THE SENIOR DEPUTY PRESIDENT: I have a copy of the notification.

PN19

MR HARRISON: I seek to tender it.

PN20

THE SENIOR DEPUTY PRESIDENT: Very well, I will receive that. This is the same document that I have on my file?

PN21

MR HARRISON: If it please the Commission.

PN22

THE SENIOR DEPUTY PRESIDENT: It does appear to be a different type face?

PN23

MR HARRISON: Does it? Well, one and the same, with respect. Well, mine are the same.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, pending the apparent difference in type face, the two documents are the same, Mr Harrison, so you can now tell me why it is and how it is that you propose that I advise Mr Howard that I should not receive an appearance from him relative to certain of those employees?

PN25

MR HARRISON: Is that exhibit 1?

PN26

THE SENIOR DEPUTY PRESIDENT: I haven't given an exhibit, it represents the application.

PN27

MR HARRISON: Nonetheless, it can be an exhibit.

PN28

THE SENIOR DEPUTY PRESIDENT: It can be an exhibit, I haven't given it an exhibit number.

PN29

MR HARRISON: May it please the Commission. It is our submission, that on the exhibit you have before you, that paragraph 2 discloses that there is a conflict existing between Hansen and Yuncken on one hand as the head contractor, and the subcontractors who by one way or another must follow its directions on the issues before the Commission. Additionally, you have before you the Master Builders Association which is a registered organisation, clearly Hansen and Yuncken is a member and on our advice, so are the other subcontractors.

PN30

It would follow in our respectful submission that the MBA alone ought to be appearing here in response to this notification simply because as a registered organisation, matters binding upon it are binding upon the members of their organisation just as if the CFMEU is cited, as it was the other day before you, its members can't be separately represented - well, they could be separately represented but they couldn't be heard to say because they were not personally represented, that the decisions binding upon the CFMEU could not be binding upon the members.

PN31

We say with respect, that the MBA is in no different position. Now, it is an easy matter for Mr Howard, we suggest, to appear for the MBA and have all his undertakings and his actions and any suggestions be made to him binding upon the organisation and its members and on that basis we suggest that if Hansen Yuncken have a different position from the MBA, they be separately represented but certainly King Form, Ballestrin and Universal Scaffolding and we say are under coercion by one means or another not to allow this annual leave to be granted by them to their employees ought to also be separately represented. May it please the Commission.

PN32

THE SENIOR DEPUTY PRESIDENT: Now, Mr Harrison, section 42 of the Act relates to representation of parties before the Commission. What part of section 42 or indeed any other part of the Act will you have me refer to, so as to find a conclusion of the nature that you seek relative to representation.

PN33

MR HARRISON: We say it is your common law duty as a defacto officer of a statutory body which has to act judicially to satisfy yourself that the parties are properly represented. Notwithstanding the breadth of a representation allowed by the Act.

PN34

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Howard?

PN35

MR HOWARD: If the Commission pleases. I take notice of what my friend has had to say but I have been instructed by each and every one of the parties that I put an appearance before to act on their behalf and as a duly paid servant of Master Builders Association South Australian Incorporated, I also put forward a representation on their behalf. As far as coercion in this matter is at the moment, I am not aware of any coercion between the principle contractor and the subcontractors in relation to this particular matter and the circumstances will be when the Commissioner hears submissions that each and everyone of the employers is in a very similar position. If the Commission pleases.

PN36

THE SENIOR DEPUTY PRESIDENT: Of the organisations that you are representing members of - - -

PN37

MR HOWARD: Each and every one of the organisations I represent here today, your Honour, are members - are financial members, current financial members of the Master Builders Association South Australian Incorporated.

PN38

THE SENIOR DEPUTY PRESIDENT: Were the issue of coercion, or alleged coercion became a fundamental issue in this matter, can you advise me of whether or not there are representatives available from each of those employers who would be available to give evidence on that question?

PN39

MR HOWARD: There would be, your Honour, each and every one of the official representatives of those organisations are present in the courtroom and would be able to speak on their own behalf.

PN40

THE SENIOR DEPUTY PRESIDENT: And the final question is relative to the role of the Master Builders Association. I don't want to pout you under any duress in terms of whether or not you wish to put in an appearance on behalf of the Master Builders Association but given that you have, what is your position relevant to the role of the MBA? Are they a party to this dispute, in your view?

PN41

MR HOWARD: The association itself is not a party to this particular dispute but what I may infer for my friend is that what ever happens here today could affect the rest of the membership of the Master Builders Association. The outcome of this particular matter today could have an effect on other members of the association.

PN42

THE SENIOR DEPUTY PRESIDENT: Perhaps you could explain that to me in a little detail, it has been quite a long day already?

PN43

MR HOWARD: Yes, well, your Honour, the matter pertains the granting of annual leave during a specific period?

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, I guessed as much from the notification.

PN45

MR HOWARD: Now, I would anticipate that - and I can virtually say that there other people who have been asked to think about closing their sites for the same period, however, at this point in time they are not in dispute and there is no industrial action at all and no request as such to the Commission for those matters to be held. I would assume that what ever the outcome of today's matter is, that would be flowed on to other building employers in Adelaide to close their sites on the grounds that the Commission may come to that decision in respect of this particular dispute, that is what I be reading Mr Harrison from.

PN46

MR HARRISON: Well, that is not - - -

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, but let us not pre-empt Mr Harrison's view, he will have the opportunity to present that. You are not suggesting to me that the outcome of this particular matter would necessarily dictate the outcome of annual leave and rostered day off arrangements for other employers covered by other - possibly other awards or other agreements, are you?

PN48

MR HOWARD: One would assume that it shouldn't, but one could also assume that it may.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Howard. Mr Howard, I will allow your representation of the nominated employers, the extent that the Master Builders Association are a party to these proceedings, I would indicate to you at this stage that I don't intend to recognise the Master Builders Association as a party but I will give leave to you to argue that position should that become necessary.

PN50

MR HOWARD: I accept that, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harrison?

PN52

MR HARRISON: If it please the Commission, the notification speaks for itself and it turns upon paragraph 2 and I seek - Mr Feehnan has held discussions with Hansen Yuncken on this matter and it is from Hansen and Yuncken that he has learned of their policy in relation to the subcontractors and the applications for annual leave. And I have another witness with us, Terry Dickson, the site delegate who will give evidence as to his particular application and others that he knows of. I call Mr Feehnan.

PN53

THE SENIOR DEPUTY PRESIDENT: Perhaps before you do, Mr Harrison, can I clarify a number of preliminary issues and housekeeping issues if you like? First of all the application was lodged as a section 99 application - - -

PN54

MR HARRISON: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: - - - it indicated that the parties, not all of who obviously were named were bound by the National Building Industry Award, which I take it to be the National Building and Construction Industry Award 1990.

PN56

MR HARRISON: I beg your pardon, I seek to amend to that extent.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. I will make that amendment. It also identified that the parties are bound by various - or may be bound by various Federally Certified Enterprise Bargaining Agreements?

PN58

MR HARRISON: Yes.

PN59

THE SENIOR DEPUTY PRESIDENT: Can I advise you that I have in my possession various extracts of that Federal Award, I have in my possession a copy of the Ballestrin Concrete Constructions Proprietary Limited Enterprise Agreement 2000. The Universal Scaffolding Proprietary Limited Enterprise Agreement 2001, and the Hansen Yuncken Proprietary Limited CFMEU Enterprise Agreement 2001-2002 Agreement. I do not have any other agreements, nor indeed do I know whether any other agreements may or may not be relevant. I thought it appropriate to let you know first of all what material I had before me.

PN60

MR HARRISON: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: And secondly, to indicate that a brief perusal of those documents indicates that there may well be a variety of award and/or agreement prescriptions that could conceivably relate to the matter which you say is the subject of the dispute in the dispute notification and hence depending on the progress in this matter, it may well be necessary for some more detailed material to be given to me that goes to the nature of the industrial arrangements that apply in each individual case.

PN62

MR HARRISON: Well, only if they are being used as a defence against us.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, I accept that but I thought it only appropriate to let you know of that possibility.

PN64

MR HARRISON: Hence the need for the Master Builders' Association to be a party to these proceedings simply because it is the respondent to the Federal Award which, of itself, makes all these other parties bound by what it does.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. I have indicated that I am happy to hear argument at some point, determined presumably by the parties, as to the nature of the Master Builders' Association involvement.

PN66

MR HARRISON: You will recall the other day you raised an issue, industrial matter. This is clearly an industrial matter and an interstate dispute arising out of the award itself.

PN67

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, by nature of my job I raise issues of industrial matters every day and indeed numerous times every day. I don't recall the instance to which you are referring off the cuff.

PN68

MR HARRISON: The Vaughan Place case, you raised it there but putting that to one side - - -

PN69

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, I guess the point that I am anxious to clarify with you at this point is simply to put you on notice, depending on the arguments that are put to me, we may well have to refer to provisions that are contained in both the award and individual agreements and I thought it only fair to let you know that I have copies of three such agreements and maybe more but perhaps of greater significance is the application before me does not appear to identify a specific request, that is it does not clarify what it is, that you, as the applicant, are seeking from me - - -

PN70

MR HARRISON: Well, I would have thought, with respect - - -

PN71

THE SENIOR DEPUTY PRESIDENT: If you just let me finish for a moment, which raises a significant question in my mind. One of the common or relatively common features of those three agreements and the award is in fact the dispute resolution process and before we get into the issue of evidence I would be interested in hearing from you as to specifically what is sought and secondly, the extent to which you say the dispute resolution process, articulated in each of those agreements and indeed, in the award has been exhausted to the extent that you need to come to this august place?

PN72

MR HARRISON: Well, firstly what we clearly seek and it is a matter of necessary indication, is paragraph 1 of what is in dispute. We seek a recommendation, nothing else, that that be adopted by the MBA in relation to these companies. It is fanciful to suggest, notwithstanding this is capable of arbitration, interstate dispute, that we are seeking to extend this to any other employers in South Australia. I might add, that Hansen and Yuncken, on other sites allow paragraph 1.

PN73

It is only on this site that they take this attitude towards the subcontractors and their employees. Of course, Hansen and Yuncken has six employees on this site to which it applies this doctrine. To explain more fully, what the argument is about is whether the rostered days off which are regularly set with the MBA every year, are to be concertinaed so that one is brought forward and one is carried - one is brought back and one is carried forward so there is only one day in between that Hansen and Yuncken what their employees and the subcontractors on the site to take 1 day annual leave.

PN74

What the workers are saying is, well, what we would prefer to do is have a 12 day break, leave the RDOs as they stand and we will apply for 3 days annual leave and that is a position accepted on other sites by Hansen and Yuncken. Now, we say that is an unreasonable position to take. True, we haven't exhausted all the provisions of the procedure set out and if the Commission feels happier that that occur then I will seek an adjournment for that to take place.

PN75

THE SENIOR DEPUTY PRESIDENT: How far have you got down the path of following the various dispute resolution provisions?

PN76

MR HARRISON: Well, candidly, on what Mr Feehnan told me of his discussions with Hansen and Yuncken, the rest would be just a waste of time because they take the same view no matter what we do. I know of no provision in any of those agreements that exclude the jurisdiction of the Commission.

PN77

THE SENIOR DEPUTY PRESIDENT: I am not suggesting the jurisdiction of the Commission is necessarily excluded but I am suggesting to you, very strongly, that the agreements and indeed the award, generally provide for a process of discussions and only when those discussions have been unable to resolve the matter are issues such as this then referred to the Commission.

PN78

MR HARRISON: Yes. I don't walk away from that and I don't really intend to make any submissions contrary to what has fallen from the bench. Indeed, I am prepared to seek this matter go into committee, as it were, so we can have those discussions before we pursue the evidence before the Commission.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you. It might be best if I hear from Mr Howard in that regard before we proceed. Mr Howard.

PN80

MR HOWARD: Thank you, your Honour. The discussions that have taken place in recent times have been discussions held with Hansen and Yuncken Proprietary Limited. There have been no discussions take place with any one of the subcontractor personnel that I here represent today. Each of the companies parties to this dispute, have in place an enterprise agreement. Each and every one of those agreements has a dispute settlement procedure.

PN81

The situation is that each and every one of those agreements also has a provision pertaining to annual leave and the taking of annual leave. The situation, as it stands at the moment is there has been a discussion by Mr Feehnan with representatives of Hansen and Yuncken over a number of days, namely 13, 17, 19 and 21 March 2003. That discussion centred around persons taking 3 days annual leave for the days between Easter Monday and Anzac Day, which falls on the Friday. So we are talking about the Tuesday, the Wednesday and the Thursday, 22, 23 and 24 April 2003.

PN82

In respect to those discussions, Hansen and Yuncken advised that due to the work program for the Commonwealth Law Courts that they would require the site to be open and persons to be working in accordance with their contractual obligations. At no stage has Hansen and Yuncken advised the subcontractors that they were not allowed to grant their employees annual leave and it would not be right for Hansen and Yuncken to even make that statement or suggest that statement. What Hansen and Yuncken would require is that they provide the labour for work on those days.

PN83

So if they did grant annual leave to any of their employees and they were required to work on that site, they would have to find employees from other areas to work on that site. That has not got down to that. The other suggestion that was made on 13 March by a representative of Hansen and Yuncken was that the company was open to reviewing the timing of the rostered days off over this period to breach the two sets of public holidays. That is what was said. Now, that has not progressed away from there. My information is that Hansen and Yuncken have not granted annual leave to other employees during that period.

PN84

It would seem to me at this point in time that because employees of the other companies involved and there has been no discussions between the union and those employers as to the granting of annual leave or the melding of rosters days off into one week has been discussed with those companies at all. So those companies should really not be before the Commission today as a party to this dispute because there has been no discussions take place with those parties.

PN85

The dispute, if there is one, remains with Hansen and Yuncken over what their activities are. Their activities are quite clear in this matter. They have said that the Commonwealth Law Court site needs to be operative over those days that the unions suggests the site be closed. They are saying if the site is open we require subcontractors to provide labour on those days, then those subcontractors have a duty under their contract to provide labour for those days. It does not say who. It does not say where the labour comes from.

PN86

It says that if they open the site on those days, because they require work to be performed, then the subcontractors have got to comply with their contract and provide the labour to keep the job going. So at the point in time here, none of the discussions have been exhausted to a stage where - my understanding is, the answer is a complete no. It has been suggested on 13 March that HY or Hansen and Yuncken, would look at the possibility of the timing of the rostered days off. There has been no discussion in respect to other persons from other companies and their annual leave.

PN87

Hansen and Yuncken can't grant or not grant annual leave to employees of other companies. They can only look at the employees of their own company. So I don't believe that at this point in time the provisions of the various certified enterprise agreements have been followed in terms of the dispute settling procedures and until they are followed then there is no real dispute in terms of what we are seeking here today, particularly in respect to the nominated subcontractor Ballestrin Concrete Constructions Proprietary Limited, King Formwork Proprietary Limited, McMahon Services Proprietary Limited and Universal Scaffolding Proprietary Limited.

PN88

I am not sure, in respect of Hansen and Yuncken Proprietary Limited, that the discussions have been exhausted to the extent that we should be here today. My understanding is that the discussions were not concluded and Hansen and Yuncken haven't replied to the reviewing of the timing of the RDOs. If the Commission pleases.

PN89

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Harrison, is it fair then for me to characterise this matter in two groups. It appears to me that if I am understanding Mr Howard correctly, there is the question of disputation with Hansen and Yuncken and that disputation could, itself, take at least two forms. It could be dispute over whether or not Hansen and Yuncken are allowing its employees properly to take - not allowing its employees to take three nominated single annual leave days in April and the second character or potential character of the dispute with Hansen and Yuncken is whether or not they are improperly, under the Workplace Relations Act, requiring other employers to take certain nominated actions.

PN90

The second categorisation of the dispute is that the dispute might well relate to the actions of nominated subcontractors, who I will not now name, but for the purpose of this discussion they include the subcontractors identified in your dispute notification. In relation to that second category, it appears there have not, as yet, been discussions between the union and those contractors over the union's claim for three single annual leave days to be granted in April.

PN91

MR HARRISON: Yes, I think the three issues you raise are really covering paragraphs 2 and 3. As to the discussions with the subcontractors that would seem pointless if Hansen Yuncken tell us it is not on and of course there is a dispute with the Master Builders' Association quite apart from the award and the agreements you have referred to, we have an agreement, the CFMEU with the MBA, as to rostered days off and to the specific dates which are agreed every year.

PN92

Now, they are departing from this or, at least, allowing their member, Hansen Yuncken, to apparently depart from it. Now, they are very much a part of this dispute and there is no provision in any of those agreements or the MBA to go through the process. I'm not walking away from the process, if your Honour is more comfortable with us today and meeting all our friends here and the MBA and Hansen Yuncken we will do so and I would seek an adjournment for that purpose to meet the Commission's convenience.

PN93

THE SENIOR DEPUTY PRESIDENT: Well, I will grant that adjournment. In doing so, can I recommend that you might consider those categories that I mentioned. I'm happy to regard them as three discreet categories if you wish it to be so. It seems to me that there is scope for a discussion with Hansen Yuncken pursuant to the award and the certified agreement prevailing in that area. With that discussion being focused on whether or not Hansen Yuncken are prepared to accede to your claim for the three single annual leave days to be granted in April.

PN94

There is scope for a discussion with Hansen Yuncken over what requirements Hansen Yuncken have for the actual construction site I would have to observe that the extent to which there is jurisdiction for the Commission to operate in that regard might still need to be established. I'm not saying there isn't jurisdiction, but I'm saying that you may need to establish that and finally there is scope for discussions with the individual contractors, or subcontractors.

PN95

MR HARRISON: Did I understand the Commission to be saying it has no jurisdiction, or it does have jurisdiction to entertain an industrial dispute which has, as its back drop, civil contractual obligations?

PN96

THE SENIOR DEPUTY PRESIDENT: I'm simply saying you may need to establish the jurisdiction that exists there. I'm making absolutely no observations at all over whether or not the jurisdiction does exist, nor indeed do I consider it would be appropriate for me to make any such observations given the paucity of information currently available to me.

PN97

MR HARRISON: You see my friend had already indicated to you where the coercion is. They are saying Hansen Yuncken through him under the MBA: look, you can give these people their annual leave, but if we are to have a contractual provision that obliges you to provide labour on those 3 days we will insist upon that and of course the coercion there is that no employer is going to want to pay twice. That will centre upon the second issue that you have raised with us and we will pursue that with them.

PN98

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, there was some debate over the proposed concertinaing of rostered days off. As I recalled the comment: one rostered day off might need to be deferred and taken during this time, one might need to be brought forward.

PN99

MR HARRISON: Yes.

PN100

THE SENIOR DEPUTY PRESIDENT: Simply in order to address the issue of timing of when the parties might need to come back before me if you cannot resolve the matter and with absolutely no conclusion on my part as to the rostered day off proposal, can you tell me whether you are aware of when the proposed rostered day off was supposed to be, or possibly to be deferred from?

PN101

MR HARRISON: That is the day before the holidays and the day after.

PN102

THE SENIOR DEPUTY PRESIDENT: Very well. If the parties were to have discussions today then there exists the potential that I could reconvene this hearing tomorrow afternoon in which case I would be listing it for 2 pm tomorrow afternoon. I propose to adjourn the hearing on that basis. In doing so, can I make it absolutely clear that I will list the matter for hearing tomorrow afternoon at 2 pm. That is set on the basis that the parties are not able to reach agreement today.

PN103

If the parties either reach agreement today, in which case I will expect to be advised accordingly or alternatively look as if they might be progressing towards an agreement can I say to you that an agreement reached between the parties is an infinitely preferable one imposed by the Commission and i would be very happy to reschedule tomorrow afternoon's hearing in the event that it looks as if progress might be made if a further meeting were to be scheduled.

PN104

MR HARRISON: I undertake to have your associate fully informed.

PN105

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Howard, do you have a problem with that proposal?

PN106

MR HOWARD: I don't have a problem with that proposal, but I would like to make one point that my friend alluded to and that is the question of the rostered days off. Whilst there may be a designated public holiday and rostered day calender negotiated between the Master Builders' Association and the CFMEU and published accordingly for the commercial industrial sector of the industry to know which days are basically the rostered day off and the public holidays in the industry, there is a provision in all of the enterprise agreements relating to rostered days off and it take the obligation of negotiating those days away from the association whatsoever.

PN107

If I just quote from Hansen Yuncken's Enterprise Agreement under 5.2: Rostered Days Off, in particular, 5.2.1, the provision says:

PN108

The company will generally observe the industry rostered days off as per clause 16A of the National Building Construction Award 1990, however, where the company and the employees agree an alternative day may be substituted for the industry rostered day off. The union secretary or his or her nominated official will be informed prior to the close of business on the Wednesday preceding the rostered day off for his or her endorsement of the proposed substitution. The parties agree that endorsement of the proposed substitution will not be unreasonably withheld.

PN109

And it goes on to talk about what payments will be made if that is the case. There are provisions in these agreements for people due to work commitments under the contract to work on a rostered day off and provide for another rostered day off to be taken at a later time or even preceding the current rostered day off.

PN110

There are provisions that move the responsibility of moving the rostered days off away from the Master Builders' Association to that of the individual employer and in a number of cases, by agreement with the union. Not all of the agreements have the union as a party, but they all have a similar provision about the right by agreement with employees to change the rostered days off. It is not an industry issue, it is an independent employer issue and each and every one of the employers has had a provision in their enterprise agreement, or would follow the award provision, which also allows for that to happen. In the award it does say the union will be notified.

PN111

Some of the agreements don't say that, but in this case Hansen Yuncken, who are the prime persons who have mooted there may be an arrangement have the capacity within the enterprise agreement to negotiate such a deal without the involvement with the association. If the Commission pleases.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Howard. Look, I understand the argument you are putting to me, but fundamentally I also understand that you are in agreement that there ought to be a discussion under the three broad sort of areas and potential agreement or disagreement with the CFMEU. Can I take it that is a given?

PN113

MR HOWARD: Yes, what I want to make that point there, Commissioner, your Honour, sorry - is that there is a provisions that allows a negotiation to take place to move today, so not buried in concrete so you can't change them.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes, look, I understand that.

PN115

MR HOWARD: And I follow what you have said that there should be discussion take place to see if the parties can reach agreement on what process comes into play, whether it be annual leave or rostered days off, or nothing at all if the site needs to work.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, look, the other issue that occurred to me as you were talking was that if the parties do end up by having to come back before tomorrow afternoon or indeed on another day in the next week or so, can I ask that both parties assume a responsibilities to ensure that I'm given copies of any agreement to which they might refer. It is your last words, Mr Howard, that brought to my attention that I don't in fact have the same copy of the Hansen Yuncken agreement to which you have referred. It appears to me that if we are going to become involved in a debate over what some of these agreements say then it would be appropriate for everybody to have a copy before them.

PN117

MR HOWARD: I can supply copies, your Honour. This is the actual certified agreement number 4 between Hansen Yuncken Proprietary Limited and the CFMEU which was the 2000 agreement.

PN118

THE SENIOR DEPUTY PRESIDENT: Thank you. I guess the other matter that I put in the same category would relate to a copy of any agreements whether they be registered or not that relate to a schedule of rostered days off under the award.

PN119

MR HOWARD: Yes, I did have a copy with me today if we went down that track, your Honour.

PN120

THE SENIOR DEPUTY PRESIDENT: I sincerely hope that I won't see the parties tomorrow, but on the basis that agreement isn't possible today then I will adjourn the matter until 2 o'clock tomorrow afternoon.

ADJOURNED UNTIL FRIDAY, 28 MARCH 2003 [1.27pm]